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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0638-18T4






                   Submitted December 14, 2020  Decided December 29, 2020

                   Before Judges Fasciale and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 11-10-1910.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique Moyse, Designated Counsel, on the

                   Theodore N. Stephens, II, Acting Essex County
                   Prosecutor, attorney for respondent (Stephen A.
                   Pogany, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, on the brief).

                   Appellant filed a pro se supplemental brief.

      Defendant appeals from a June 28, 2018 order denying his petition for

post-conviction relief (PCR). Defendant argues that his trial counsel rendered

ineffective assistance by failing to call alibi witnesses, and that he established

his prima facie claim for PCR, therefore entitling him to an evidentiary hearing.

We agree, reverse, and remand for further proceedings consistent with this


      A jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-

3(a)(1); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b);1

and second-degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4. A judge sentenced defendant to a life term pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2. We upheld the convictions and

remanded for resentencing, State v. Sneed, No. A-5865-12 (App. Div. Aug. 5,

2016), and the Supreme Court denied certification. State v. Sneed, 228 N.J. 239

(2016). A judge resentenced defendant to a thirty-years' prison term with a

thirty-years' period of parole ineligibility. Thereafter, the PCR judge entered

the order under review.

  The second-degree unlawful possession of a weapon charge was later merged
into first-degree murder charge.
      On appeal, defendant raises the following argument for this court's


            POINT I

            [DEFENDANT]   IS  ENTITLED    TO   AN

      In his pro se brief, defendant raises the following arguments for this

court's consideration, which we have renumbered:

            [POINT II]

            Since [defendant] presented a prima facie claim that
            defense counsel was ineffective in failing to present his
            alibi witness, such deficiency required an evidentiary
            hearing to be conducted; as such, the PCR [judge]
            abused [her] discretion in acting as a "thirteenth juror"
            by concluding that defense counsel's conduct was

                 A. Standard of Review[.]

                 B. The PCR [Judge] Abused [Her] Discretion [i]n
                    Concluding [i]t [w]as [a] "Strategic" Decision
                    [i]n Refusing Brittany Toliver's Alibi Witness

                 C. The PCR [Judge] Abused [Her] Discretion [i]n
                    Concluding [i]t [w]as [a] "Strategic" Decision
                    [i]n Refusing Jimmie Nickerson and Willie
                    Toliver's Alibi Witness Testimony[.]

      We incorporate the facts as set forth in State v. Sneed, A-5865-12 (App

Div. Aug. 5, 2016). At trial, defendant's trial counsel argued that defendant

could not have been the shooter because he was not present at the time of the

shooting, however trial counsel did not produce witnesses to support defendant's

alibi. The State called multiple eyewitnesses who identified defendant as the

shooter. S.L. testified that she did not see the shooter's face and stated that she

assumed that defendant was the shooter because he was always with J.N. and

W.T. R.H. told the police that the shooter was wearing a mask, which would

have made a proper identification difficult. W.P. told the police that he could

not see the shooter's face because he "had a hoodie and . . . dreadlocks . . .

covering his face." J.Y. testified that the shooter was not defendant based on

her knowledge of his clothing.

      In support of his PCR petition, defendant certified that he was "in the

apartment of [B.T.] . . . using her bathroom when the shooting occurred." B.T.

confirmed this, certifying that defendant "could not have committed this crime

because he was in [her] apartment at the time this crime took place," and

although she told defendant's trial counsel that she wanted to testify and waited

outside the courtroom to be called as an alibi witness, defendant's trial counsel

informed her that her testimony would not be needed. J.N., who was present at

the shooting, certified that defendant "was not at the crime scene when the

victim was shot and killed[.]" Defendant's mother, C.S., certified that when

defendant left her house that day to visit his girlfriend, he was wearing different

clothing than the clothing the State's eyewitnesses described the shooter as


      Without conducting an evidentiary hearing, the PCR judge rejected each

alibi certification defendant provided as "incredible," and specifically noted that

B.T. and J.N.'s certifications were "questionable." As to all the alibi witnesses,

the PCR judge found that defendant's witnesses were "lacking, at times

incredible," and would not have changed the outcome of defendant's trial

because of "the evidence presented at trial." She found J.N.'s certification

"questionable" because "five years after [defendant's] conviction he [came]

forward and [indicated] that the defendant was not there." The PCR judge

assessed the credibility of the affiants as she believed they would have likely

been viewed alongside the witnesses at trial. She found that "the credibility of

[B.T.'s] testimony would've significantly been outweighed by the other four

witnesses."   The PCR judge concluded that the proposed testimony was

"significantly vague, bias[ed]" and "incredible."

      The PCR judge also found that trial counsel's failure to call alibi witnesses

was reasonable trial strategy. She specifically found trial counsel's failure to

call C.S. was reasonable trial strategy because "there [was] a good reason to

question the witness's credibility[.]"   She also found that because J.N. was

initially on the State's witness list, it was "reasonable [for defendant's trial

counsel] to infer that he would've had a proffer based on the reports and the

evidence that existed as to what [J.N.] and [W.T.'s] involvement was at the time

and the information that they would have." The State did not call J.N. as a

witness during trial.

      When a PCR court does not hold an evidentiary hearing, this court's

standard of review is de novo as to both the factual inferences drawn by the PCR

judge from the record and the judge's legal conclusions. State v. Blake, 444 N.J.

Super. 285, 294 (App. Div. 2016).

      Although not required, "Rule 3:22-10 recognizes judicial discretion to

conduct [evidentiary] hearings." State v. Preciose, 129 N.J. 451, 462 (1992).

"A defendant's claim of ineffective assistance of trial and appellate counsel is

more likely to require an evidentiary hearing because the facts often lie outside

the trial record and because the attorney's testimony may be required." Ibid.

       To establish a prima facie claim of ineffective assistance of counsel, a

defendant must satisfy the two-pronged test enumerated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in

State v. Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong,

a defendant must establish that his counsel "made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment."      466 U.S. at 687.        The defendant must rebut the "strong

presumption that counsel's conduct [fell] within the wide range of reasonable

professional assistance[.]" Id. at 689. Thus, this court must consider whether

counsel's performance fell below an object standard of reasonableness. Id. at


       To satisfy the second Strickland/Fritz prong, a defendant must show "that

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable." Id. at 687. A defendant must establish "a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's

performance has been so deficient as to create a reasonable probability that these

deficiencies materially contributed to defendant's conviction, the constitutional

right will have been violated." Fritz, 105 N.J. at 58.

      A defendant is only entitled to an evidentiary hearing when he "'has

presented a prima facie [claim] in support of [PCR],'" meaning that a defendant

must demonstrate "a reasonable likelihood that his . . . claim will ultimately

succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting

Preciose, 129 N.J. at 463).      A defendant must "do more than make bald

assertions that he was denied the effective assistance of counsel" to establish a

prima facie claim entitling him to an evidentiary hearing. State v. Cummings,

321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the burden of

establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350 (2012). We

"view the facts in the light most favorable to a defendant to determine whether

a defendant has established a prima facie claim." Preciose, 129 N.J. at 463-64.

      Our Supreme Court has noted that "[d]etermining which witnesses to call

to the stand is one of the most difficult strategic decisions any trial attorney must

confront." State v. Arthur, 184 N.J. 307, 320 (2005). "[L]ike other aspects of

trial representation, a defense attorney's decision concerning which witnesses to

call to the stand is 'an art,' and a court's review of such a decision should be

'highly deferential.'" Id. at 321 (quoting Strickland, 466 U.S. at 693).

      "[C]ounsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary." State v.

Chew, 179 N.J. 186, 217 (2004) (alteration in original) (quoting Strickland, 466

U.S. at 691). However, counsel's "[f]ailure to investigate an alibi defense is a

serious deficiency that can result in the reversal of a conviction. Indeed, 'few

defenses have greater potential for creating reasonable doubt as to a defendant's

guilt in the minds of the jury [than an alibi].'" State v. Porter, 216 N.J. 343, 353

(2013) (second alteration in original) (quoting State v. Mitchell, 149 N.J. Super.

259, 262 (App. Div. 1977)). Counsel's decision to "forego evidence that could

have reinforced [an] alibi" may "[fall] below the objective standard of

reasonableness guaranteed by the United States and New Jersey constitutions."

State v. Pierre, 223 N.J. 560, 583 (2015). So long as an alibi witness could

bolster the defense or refute the State's position if believed by the jury, the

testimony of an alibi witness need not be without credibility issues. Id. at 586-

88. If the testimony of a witness who was not presented at trial or properly

investigated by counsel could have had a reasonable probability of altering the

outcome of the trial, a court should find that "counsel's errors were sufficiently

serious so as to undermine confidence that defendant's trial was fair, and that

the jury properly convicted him." Id. at 588.

      The testimony of a defendant's alibi witness that is supported by a

witness's affidavit or certification should not be dismissed as not credible

without an evidentiary hearing to make a proper credibility determination. See

State v. Jones, 219 N.J. 298, 314 (2014) (noting that "[a]lthough the timing and

motivation of [the alibi witness's] statement and [their] reason for not voluntarily

appearing to testify as apparently had been expected raise important questions,

those questions cannot be assessed and resolved without determining

credibility"); Porter, 216 N.J. at 356 (noting that "[t]he court's findings regarding

defendant's and his girlfriend's credibility, based only on their affidavits, was an

improper approach to deciding this PCR claim and effectively denied defendant

an opportunity to establish ineffective assistance of trial counsel"). Even when

a defendant's witness's affidavit or certification appears "suspicious or

questionable," they "'must be tested for credibility and cannot be summarily

rejected.'" Porter, 216 N.J. at 355 (quoting State v. Allen, 398 N.J. Super. 247,

258 (App. Div. 2008)).         "Assessments of credibility [are] the kind of

determinations 'best made through an evidentiary proceeding with all its

explorative benefits, including the truth-revealing power which the opportunity

to cross-examine bestows.'" Id. at 347 (quoting State v. Pyatt, 316 N.J. Super.

46, 51 (App. Div. 1998)).

      Viewing the facts in the light most favorable to the defendant, defendant

has established a prima facie claim of ineffective assistance of counsel.

Defendant's alibi was that he was not present at the time of the shooting.

However, defendant's trial counsel failed to call witnesses that would have

corroborated defendant's alibi, and therefore fell below the objective standard

of reasonableness. See Pierre, 223 N.J. at 583 (noting that counsel's choice to

forego evidence that could have bolstered an alibi defense "fell below the

objective   standard   of   reasonableness"    and   met   the   first   prong   of

Strickland/Fritz). Defendant's trial counsel called no witnesses of his own to

support defendant's alibi defense, even knowing that B.T. was ready and willing

to testify on defendant's behalf. Additionally, defendant's alibi defense carried

a "reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Strickland, 466 U.S. at 694.

Establishing defendant's alibi that he was not present at the time of the shooting

through B.T., J.N., and C.S.'s testimony could reasonably have affected the

outcome of the trial.        Therefore, defendant has met both prongs of


      Therefore, the PCR judge should have conducted an evidentiary hearing

to resolve credibility issues relating to defendant's alibi witnesses. The PCR

judge made credibility determinations as to defendant's alibi witnesses based

solely on the certifications and speculated that some may be biased. But "the

proper way to determine [an alibi witness's] veracity [is] to assess [their]

testimony on direct and cross-examination." Porter, 216 N.J. at 356.

      In fairness to the PCR judge, since she previously made credibility

findings, we direct that the evidentiary hearing be conducted by a different

judge.   See State v. Gomez, 341 N.J. Super. 560, 579 (App. Div. 2001)

(reversing and remanding with instructions to assign a different trial judge "who

[would] be unfettered by comments on the record which could be interpreted as

an advance evidential ruling on admissibility").

      Reversed and remanded. We do not retain jurisdiction.


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